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Wednesday, July 27, 2011

IMMIGRATION: RIGHTS OF INDIVIDUALS V OBLIGATION OF STATE AUTHORITIES

UK BORDER AGENCY OVERHALL OF IMMIGRATION SYSTEM

In making submissions to the Minster for Justice on behalf of our clients in respect of visa and residency applications, we frequently must address the delicate balance between the rights of our individual clients against the legitimate obligations of the State. A common example would be the rights of our clients to family unity verses the State’s right and obligation to act against abuse of the Immigration laws and to generally protect the public finances. It is of course the role of the State authorities to protect against abuse of law both in the civil and criminal sphere, and in immigration terms, this would mean to prohibit fraudulent marriages of convenience, or abuses of the State’s welfare system. The correct balance to be reached can be difficult and unclear. Problematically in Ireland, the law is often very unclear as we have very little relevant statutory instruments, or departmental guidance to rely on. Thus, determinations often result in High Court litigation in order to decipher where exactly the correct balance lies in respect of individual cases. This is a huge financial burden on the State.

Often, our government looks to the UK position for guidance. We note that the UK Border Agency is currently a "major overhall of the Immigration system". It was announced on the 13th July last that the Agency is commencing a consultation process with the aims of “stopping abuse, promoting integration and reducing burdens on the taxpayer.”

Some of the proposals of this consultation group are as follows;

defining more clearly what constitutes a genuine and continuing marriage, to help identify sham and forced marriages;

introducing a new minimum income threshold for sponsors of partners and dependants, to ensure that family migrants are adequately supported as a basis for integration

extending the probationary period before partners can apply for settlement in the UK from 2 years to 5 years,

exploring the case for making 'sham' a lawful impediment to marriage in England and Wales, and for giving the authorities the power to delay a marriage where sham is suspected;

working closely with local authorities to ensure that vulnerable people are not forced into marriage; and

reviewing the full right of appeal for family visitor visas, and inviting views on whether there are circumstances (beyond race discrimination and human rights grounds) in which an appeal right should be retained.

We wonder will our own government be following in a similar vein in respect of some of these proposals in the long pending Immigration and Residence Bill?